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State v. Underdue

November 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUDY V. UNDERDUE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-04884.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendant Rudy V. Underdue appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1). Defendant was sentenced to twenty-seven years in prison on the aggravated manslaughter conviction, with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and two concurrent four-year sentences on the other offenses.*fn1

Defendant raises the following points on appeal:

POINT I

THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

(A) SINCE THE MOTION COURT FOUND THAT THE "FOUR CORNERS" OF THE AFFADAVIT DID NOT PROVIDE JUSTIFICATION FOR THE INITIAL WARRANTLESS ENTRY INTO 1135 SOUTH 8TH STREET, THE MOTION COURT ABUSED ITS DISCRETION IN RULING THAT IT WOULD CONSIDER THE INFORMATION CONTAINED IN PARAGRAPHS (V), (W), AND (X).

(B) THE MOTION COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO ELICIT TESTIMONY SUPPLEMENTAL TO THE AFFIDAVIT.

(C) THE MOTION COURT ABUSED ITS DISCRETION IN APPLYING THE "EMERGENCY AID" EXCEPTION TO JUSTIFY THE WARRANTLESS ENTRY BY INVESTIGATOR WILSON.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE STATEMENTS HE MADE TO THE POLICE IN FLORIDA ON SEPTEMBER 7, 2003 AND IN THE PROSECUTOR'S OFFICE ON SEPTEMBER 17, 2003.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IT COULD REJECT THE STIPULATIONS THAT WERE READ INTO THE RECORD. (NOT RAISED BELOW)

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT V

THE 27 YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

(A) IMPOSITION OF A BASE SENTENCE OF 27 YEARS ON THE DEFNDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.

(B) IN IMPOSING SENTENCE, THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PROVIDE ...


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